RACHHPAL SINGH Vs. SHEO RATAN SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit instituted in 1926 for possession of certain immovable property. The plaintiff had previously in 1924 brought a suit of exactly the same nature and against the same defendants, but in 1925 he had obtained permission under Order 23, Rule 1(2) to withdraw the suit with liberty to file a fresh suit, subject to the condition that he must pay the costs of the defendants in the first suit before filing any second suit. The record containing the actual proceedings and actual order embodying this permission is not before me, but it is not disputed that the order of the lower appellate Court sufficiently accurately quotes it where it says: It was ordered that before filing a fresh suit the plaintiff should pay the costs of both the Courts.

(2.) The present suit was filed on the 14 May 1926, without the costs of the previous litigation having been paid. On 28 August 1926, the defendant Sheoratan Singh in his written statement and in a later written statement another defendant challenged the right of the plaintiffs to bring the second suit without having deposited the costs in both the Courts in the previous suit. On 27th November 1926, the date fixed for the final hearing, the plaintiff tendered the costs, but the defendants refused to accept them. Both Courts have dismissed the suit on the ground that the condition on which the plaintiff had succeeded in obtaining permission to file a second suit had not been fulfilled. The plaintiff appeals.

(3.) Mr. Shambhu Nath Seth, to whom I am indebted for his careful collection of the authorities, has drawn my attention to a number of decisions of other Courts in which the effect of the failure of the plaintiff to pay the costs in cases of this type has been considered. There appears to be no decision of this Court.